AMENDMENT 779

Amendment: The Commentary to §1B1.11 captioned “Background” is amended in the first paragraph by striking the following:

“Although aware of possible ex post facto clause challenges to application of the guidelines in effect at the time of sentencing, Congress did not believe that the ex post facto clause would apply to amended sentencing guidelines. S. Rep. No. 225, 98th Cong., 1st Sess. 77–78 (1983). While the Commission concurs in the policy expressed by Congress, courts to date have generally held that the ex post facto clause does apply to sentencing guideline amendments that subject the defendant to increased punishment.”;

and inserting the following:

“However, the Supreme Court has held that the ex post facto clause applies to sentencing guideline amendments that subject the defendant to increased punishment. See Peugh v. United States, 133 S. Ct. 2072, 2078 (2013) (holding that ‘there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense’).”; and

in the paragraph that begins “Subsection (b)(3)” by striking “, cert. denied, 493 U.S. 1062 (1990)”.

Reason for Amendment:The Commission’s policy statement at §1B1.11 (Use of Guidelines in Effect on Date of Sentencing) provides that the court should apply the Guidelines Manual in effect on the date the defendant is sentenced unless the court determines that doing so would violate the ex post facto clause, in which case the court shall apply the Guidelines Manual in effect on the date the offense of conviction was committed. See §1B1.11(a), (b)(1).

This amendment updates the Background Commentary to 1B1.11 to reflect the Supreme Court’s decision in Peugh v. United States, 133 S. Ct. 2072 (2013), which held that “there is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense.” Id. at 2078. The amendment inserts new language to refer to the Supreme Court’s decision in Peugh and deletes obsolete language.

Effective Date: The effective date of this amendment is November 1, 2013.